Andhra Pradesh High Court
Judges : C.Y.SOMAYAJULU
Thota Venkatanaramma - Appellant
Versus
Eruva Enna Reddy - Respondent
Decided On : 11-05-04
Civil Procedure Code, 1908 - Rule 32 - Order 21 - Documentary evidence – Suit for declaration of their title – Dismissal of EP - Alleging that respondent, who had an opportunity to obey the decree, had wilfully failed to obey the decree and so he may be arrested and detained in civil prison for a period of six months under Rule 32 of Order 21 C. P. C - case of revision petitioners, 2nd revision petitioner was examined as PW. 1. They did not adduce any documentary evidence - In support of his case respondent examined himself as rw. l and two other witnesses as RWs. 2 and 3 and marked Exs. B. 1 to B. 8. After considering the evidence on record, the executing Court dismissed the E. P. by order under revision – Held, It is clear that revision petitioners are alive to the fact that respondent had constructed a house in the land covered by O. S., but, for the reasons best known to them, revision petitioners, did not state in E. P. violation of the decree, allegedly committed by the respondent - They simply stated that respondent who had an opportunity to obey the decree, wilfully failed to obey the same - The evidence adduced by the respondent shows that he constructed the house in 1982 after obtaining necessary sanction from the Panchayat - E. P. with vague allegations is filed in 2001 i. e. , 19 years after construction of the house by the respondent - No evidence on record to show that the land covered by the decree in O. S. is same as the land in which the respondent constructed his house, the Court below dismissing the E. P. cannot be said to be erroneous and needs no interference - Civil revision petition is dismissed.
( 1 ) AGGRIEVED by the dismissal of E. P. No. 59 of 2001 in O. S. No. 275 of 1979 on the file of the Court of Principal junior Civil Judge, Karimnagar, decree- holders filed this revision.
( 2 ) REVISION petitioners obtained a decree for declaration of their title to six guntas of land in Sy. No. 153 of Gunturpalli h/o Bommakal Village, bounded on the East by 9 ft. wide road, West by the land of musuku Yelia Reddy; North by the land of rajesham; and South by the land of Thomas reddy, and for a perpetual injunction restraining the respondent from interfering their possession over the said land, which became final. Subsequently, they filed E. P. No. 59 of 2001 alleging that the respondent, who had an opportunity to obey the decree, had wilfully failed to obey the decree and so he may be arrested and detained in civil prison for a period of six months under Rule 32 of Order 21 C. P. C.
( 3 ) RESPONDENT/jdr filed a counter, contending that the decree in O. S. No. 275 of 1979, is a fraudulent decree and that revision petitioners (decree-holders) are not in possession of the land shown in the E. P. or any part of the land in Sy. No. l53/b and that the land covered by decree is different from the land mentioned in the schedule appended to the E. P. and that revision petitioners are not in possession of the land shown in E. P. and that he purchased 12 guntas of land in Sy. No. 153/b of bommakal Village on 10. 2. 1961 and obtained possession, thereof and constructed a house bearing Door No11-7/a in the year 1982 therein, after obtaining permission from the Gram Panchayat and is in possession and enjoyment of thereof and that in fact revision petitioners filed O. S. No. 349 of 1997 against him seeking a decree of perpetual injunction basing on the decree in O. S. No. 275 of 1979, wherein he filed a written statement, denying the averments in the plaint and that the said suit was dismissed as not pressed on 29. 3. 2001, and so, E. P. is liable to be dismissed.
( 4 ) IN support of the case of revision petitioners, 2nd revision petitioner was examined as PW. 1. They did not adduce any documentary evidence. In support of his case respondent examined himself as rw. l and two other witnesses as RWs. 2 and 3 and marked Exs. B. 1 to B. 8. After considering the evidence on record, the executing Court dismissed the E. P. by order under revision.
( 5 ) THE contention of the learned counsel for revision petitioners is that executing Court dismissing the E. P. on the ground mat there is no documentary evidence to show that the respondent violated the order of injunction is erroneous because there can be no documentary evidence to show the violation of injunction and was also in error in holding that the decree in O. S. No. 275 of 1979 was not a valid decree, as it was obtained by fraud, and that the order under revision is liable to be set aside because the evidence of 2nd revision petitioner as PW. 1 clearly shows that there is violation of injunction order passed by the Court and so the respondent is liable to be punished under rule 34, Order 21 CPC. Learned Counsel for the revision petitioners placed strong reliance on Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, AIR 1970 sc 1475, in support of his contention that the Executing Court cannot go behind decree even if it is erroneous in law or on facts and also on J. R, Ramarao v. Smt. Indira Deeadayalu Naidu, AIR 2004 noc 243 (Kant.), where it is held that correctness of the decree passed by a Trial Court cannot be judged by the executing Court and even if a wrong order is passed by the Trial Court, the executing Court has no power to rectify that error.
( 6 ) THE contention of the learned counsel for respondent is that the land covered by the decree in O. S. No. 275 of 1979 and the property mentioned in the e. P. schedule are not the same, because the boundaries mentioned in the E. P. schedule and the boundaries mentioned in the decree do not tally. The property shown in t
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